United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION & ORDER
KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE
Shedric Finklea (“Plaintiff” or
“Finklea”) seeks judicial review of the partially
favorable final decision of Defendant Commissioner of Social
Security (“Defendant” or
“Commissioner”) finding Finklea disabled from
November 14, 2011, through June 1, 2013, but finding that
Finklea was not disabled from the alleged onset date of
January 14, 2011, until November 14, 2011, and that
Finklea's disability ended on June 2, 2013. Doc. 1, Tr.
13. At issue in this case is the Administrative Law
Judge's determination regarding the January 14, 2011,
through November 14, 2011, time period and his determination
regarding the time period after June 1, 2013.
Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
This case is before the undersigned Magistrate Judge pursuant
to the consent of the parties. Doc. 11. For the reasons set
forth below, the Court AFFIRMS the Commissioner's
protectively filed applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income
(“SSI”) on May 2, 2013. Tr. 156, 173, 348-354,
366-373, 410. He alleged a disability onset date of January
14, 2011. Tr. 348, 366, 410. Finklea alleged disability due
to back problems, bronchitis, asthma, problems with left hip,
depression, high blood pressure, and sciatic nerve. Tr. 209,
219, 415. Finklea's applications were denied initially
(Tr. 209-215) and upon reconsideration by the state agency
(Tr. 219-225). Thereafter, he requested an administrative
hearing. Tr. 226-228. On October 17, 2012, Administrative Law
Judge Thomas M. Randazzo (“ALJ Randazzo”)
conducted an administrative hearing (Tr. 50-105) and, on
January 4, 2013, ALJ Randazzo issued an unfavorable
disability decision (Tr. 174-197).
requested review of ALJ Randazzo's decision by the
Appeals Council. Tr. 262. Initially, on August 6, 2014, the
Appeals Council indicated it intended to adopt ALJ
Randazzo's decision (Tr. 199, 273-276) but subsequently,
on September 19, 2014, the Appeals Council decided that it
was necessary to remand the case for further proceedings
before an Administrative Law Judge for consideration of
Finklea's November 2012 hip replacement surgery in
determining whether Finklea met a listing and in assessing
his credibility and RFC; for consideration of Finklea's
obesity; and for consideration of his disability claim under
both Title II and Title XVI. Tr. 12, 199-200.
to the Appeals Council's remand order, on April 9, 2015,
Administrative Law Judge Peter Beekman (“ALJ”)
conducted an administrative hearing. Tr. 106-132. Thereafter,
on June 8, 2015, the ALJ issued a partially favorable
decision. Tr. 8-49. The ALJ concluded that:
After careful consideration of all the evidence, I conclude
that the claimant was "disabled" within the meaning
of the Social Security Act from November 14, 2011 through
June 1, 2013. I also find that the insured status
requirements of the Social Security Act were met as of the
date disability was established. On June 2, 2013, medical
improvement occurred that is related to the ability to work,
and the claimant has been able to perform substantial gainful
activity from that date through the date of this decision.
Thus, the claimant's disability ended on June 2, 2013.
requested review of the ALJ's decision by the Appeals
Council. Tr. 6-7. On April 5, 2016, the Appeals Council
denied Finklea' request for review, making the ALJ's
June 8, 2015, decision the final decision of the
Commissioner. Tr. 1-3.
Personal, vocational and educational evidence
was born in 1966. Tr. 348, 366, 410. Finklea's past work
included event security worker, machine operator, laborer,
and shelter monitor. Tr. 113-114, 121-125. Finklea was
incarcerated from 1991 until 2003 and from June 2007 until
June 2008. Tr. 61-63. Finklea obtained his GED and completed
four years of college through Ashland while he was in prison.
Tr. 66. Finklea did not receive a degree but obtained
certificates for business and office skills. Tr. 66-67, 116.
Also while in prison, he received a tutoring certificate and
served as a tutor. Tr. 65, 66-67. He also worked on trying to
complete a hospitality management program while he was in
prison but was released before he was able to complete the
program. Tr. 66. After his release from prison in 2008,
Finklea stayed in a shelter and he eventually started working
there about three day per week. Tr. 63-64. He sat at a
check-in desk at the shelter and checked people in. Tr. 64.
March 23, 2010, Finklea presented to St. Vincent
Charity's emergency room with complaints of back, hip and
thigh pain. Tr. 1302-1308. Finklea reported that the left leg
and hip pain was present for about one month and that the
pain was constant. Tr. 1306. Finklea was observed to be
ambulating well. Tr. 1306. His gait was normal. Tr. 1303. On
examination, Finklea exhibited pain at 30 degrees on straight
leg raise on the right. Tr. 1303. The emergency room
diagnosis was sciatica on the left, acute, and he was
discharged home. Tr. 1303.
14, 2010, Finklea was back at the emergency room. Tr.
1314-1333. He was seen at Euclid Hospital. Tr. 1315. Finklea
complained of chest pain and chronic left hip pain that was
worse recently without any new injury. Tr. 1318. A left femur
x-ray was taken, which showed bullet fragments in the medial
aspect of the left thigh, degenerative changes of the left
hip joint, and no acute fracture or dislocation. Tr. 1325. An
x-ray of the pelvis showed degenerative changes in both hips,
greater on the left. Tr. 1325-1326. On examination,
Finklea's gait was within normal limits, his extremities
were non-tender, he moved all extremities, and there was no
pedal edema. Tr. 1319. Finklea was discharged the same day
with diagnoses of degenerative joint disease and
hypertension. Tr. 1324.
October 27, 2010, Finklea saw Dr. Lorraine Stern in the
orthopeadics department at MetroHealth Medical Center
regarding his hip pain. Tr. 1343. Finklea indicated that he
had a history of hip pain. Tr. 1343. His hip pain had been
intermittent but was becoming more frequent. Tr. 1343. He
reported being able to walk for about 30 minutes without pain
and walking with a cane at all times. Tr. 1343. X-rays taken
on October 27, 2010, of the pelvis and left hip showed
osteoarthritic changes involving the left hip. Tr. 1398. Dr.
Stern assessed moderate left hip osteoarthritis and discussed
with Finklea the likelihood of needing a total hip
replacement in the future but indicated that Finklea was too
young at that point to have total hip replacement. Tr. 1344.
A referral was provided for physical therapy for range of
motion and strengthening and he was provided Naproxyn for
pain. Tr. 1344.
November 4, 2010, Finklea was seen by MetroHealth Family
Practice Clinic as a new patient to establish a relationship.
Tr. 1338-1342. One of Finklea's complaints was hip pain
with osteoarthritic changes. Tr. 1338. Other medical
conditions noted were mild persistent asthma and
hypertension, NOS. Tr. 1338. It was noted that Finklea was
not compliant with his hypertension medication. Tr. 1341.
to Dr. Stern's referral, on December 1, 2010, Finklea
started physical therapy. Tr. 1501-1506. The physical
therapist observed decreased hip AROM, decreased hip
strength, reduced right lower extremity flexibility, an
altered gait pattern, and positive findings related to
osteoarthritis diagnosis of the left hip. Tr. 1505. The
physical therapist recommended physical therapy for six
visits. Tr. 1505. During his third physical therapy visit on
December 27, 2010, Finklea reported that his hip pain was a
lot better. Tr. 1472. He tolerated the exercises with no
complaints of pain. Tr. 1473. Manual therapy helped reduced
Finklea's left hip pain to a 0/10. Tr. 1473.
Finklea's blood pressure was okay at the start of the
physical therapy session but, by the middle of the session,
Finklea's blood pressure had risen above an appropriate
range and exercise was stopped. Tr. 1473.
March 15, 2011, a new course of physical therapy was started.
Tr. 1458. Prior physical therapy treatment had failed due to
Finklea's hypertension. Tr. 1459. The diagnosis was left
hip arthritis. Tr. 1458. Finklea complained of low back pain,
hip pain, left lower extremity numbness down to the toes,
difficulty walking due to pain, and difficulty staying in one
position for an extended period of time. Tr. 1459. His main
complaint was his walking endurance, which was limited to one
city block. Tr. 1459. The physical therapist recommended 10
physical therapy visits. Tr. 1461.
a March 31, 2011, visit with his primary care physician for
follow up regarding his hypertension, Finklea reported that
he was not taking his medication regularly. Tr. 1442. He just
took his medication when he felt like it. Tr. 1442. After a
number of denials, Finklea admitted that he was using cocaine
almost two times each week. Tr. 1442. Following his visit
with his primary care physician on March 31, 2011, Finklea
attended his second physical therapy session. Tr. 1447. He
reported 0/10 pain. Tr. 1447. Due to hypertension, physical
therapy exercises had to be postponed. Tr. 1447. The physical
therapist observed that Finklea's hip range of motion was
now within normal limits. Tr. 1447. FABER position was still
limited. Tr. 1447. Finklea's strength had increased to
4/5 in hip flexion and abduction. Tr. 1447. Finklea's
doctor cleared Finklea to continue with physical therapy but
with limited exertion. Tr. 1447.
April 15, 2011, Finklea was seen at the emergency room for
left hip pain and right leg numbness. Tr. 1430-1438. Finklea
was diagnosed with acute chronic left hip pain and advised to
follow up with the orthopedic clinic. Tr. 1437. On April 20,
2011, Finklea followed up with the orthopedic department and
saw Dr. Jonathan E. Belding, M.D. Tr. 1428-1429. He was last
seen by the orthopedic department for his hip pain in October
2010. Tr. 1428. Finklea continued to report that he was
walking with a cane at all times. Tr. 1428. He indicated he
could only walk for about 30 minutes without pain. Tr. 1428.
Dr. Belding discussed the likelihood of needing total hip
replacement in the future but again advised Finklea that he
was too young to have joint replacement. Tr. 1428. Dr.
Belding discussed and Finklea was interested in receiving a
joint injection. Tr. 1429. Considering Finklea's young
age, conservative management of his hip osteoarthritis was
recommended. Tr. 1429.
an injection, on June 20, 2011, Finklea saw Dr. Jonathan B.
Macknin, M.D., of the orthopedic department for follow up.
Tr. 1573. Finklea reported relief from his hip symptoms for
about a month and a half, indicating that his hip pain was
somewhat less than it was prior to the injection. Tr. 1573.
Also, he was not using his cane and overall reported
ambulating better. Tr. 1573. On September 19, 2011, Finklea
returned to the orthopedic department reporting that his pain
had returned to baseline. Tr. 1577. He reported stiffness and
increased pain after activity. Tr. 1577. He had started to
use his cane again for ambulation in the community. Tr. 1577.
It was recommended that another injection be considered since
Finklea had obtained adequate pain relief previously. Tr.
1577. Also NSAIDs as prescribed by his primary care physician
were recommended. Tr. 1577.
September 30, 2011, another steroid injection was
administered in Finklea's left hip. Tr. 1580. During a
November 8, 2011, primary care visit, Finklea reported that
that the injection he had received a few weeks earlier had
not helped. Tr. 1583. He indicated that his pain had been
getting worse in the prior few weeks, indicating that his
pain was constant and he rated it as 10/10. Tr. 1583. He had
stopped taking Naprosyn, stating it did not work. Tr. 1583.
He was using a cane while walking. Tr. 1583. On examination,
both hips appeared grossly normal. Tr. 1584. Finklea's
left hip was non-tender to palpation. Tr. 1584. No erythema
or swelling was noted. Tr. 1584. There was limited active
movement, which according to Finklea was due to pain. Tr.
1584. Finklea exhibited normal passive range of motion;
strength was 5/5; and there was normal tone and reflexes. Tr.
1584. It was recommended that Finklea return to orthopedics
for his hip. Tr. 1584. A few Percocet pills were provided to
Finklea pending his orthopedic visit. Tr. 1584.
November 14, 2011, Finklea was seen again by the orthopedic
department. Tr. 1597-1598. An x-ray was taken of the left hip
showing “[p]rogressive degenerative arthritic change
involving left hip. There is a superimposed acute fracture
involving the superior lateral aspect of the
acetabulum.” Tr. 1599.
17, 2012, Finklea met with the orthopaedic department to
discuss total left hip replacement surgery, indicating he had
been approved for Medicaid and was interested in proceeding
with the surgery. Tr. 1800. On July 24, 2012, Finklea's
doctors reviewed his left hip x-rays and agreed to proceed
with left hip replacement. Tr. 1797, 1799. Total hip
replacement surgery was originally scheduled for August 31,
2012, but the surgery had to be cancelled because
Finklea's blood pressure was elevated. Tr. 1773, 1781.
Ultimately, on November 23, 2012, Finklea underwent left
total hip replacement surgery. Tr. 2268-2273. From November
26, 2012, through December 5, 2012, Finklea was in a
rehabilitation facility. Tr. 2300-2301. At discharge,
Finklea's condition had improved and he was ambulatory
with use of a walker. Tr. 2406. Finklea had physical therapy
and occupational therapy appointments and was instructed to
follow up with his primary care physician. Tr. 2406.
August 7, 2013, Finklea was seen in the emergency room
following a fall that occurred while he was carrying things
down stairs. Tr. 2415-2417. Finklea strained his back. Tr.
2416. There was concern that Finklea's fall might have
caused injury or damage to his hip replacement hardware but
x-rays were taken of the hip and pelvis and there were no new
injuries. Tr. 2416, 2423-2424.
August 22, 2013, Finklea was seen at his primary care
physician's office with complaints of left hip pain that
he had been having for two days. Tr. 2450. Finklea noted that
the pain was sudden and occurred while he was loading stuff
into his truck. Tr. 2450. Finklea received a Toradol
injection and an x-ray was taken. Tr. 2452. No acute fracture
was shown on the x-ray. Tr. 2451, 2458. On August 17, 2013,
Finklea returned to orthopedics. Tr. 2461. He reported that
he had fallen on his left hip about two weeks prior and
injured it again a week after that while lifting heavy
objects into a truck. Tr. 2461. Finklea had been taking
Percocet with good relief but had not tried
anti-inflammatories. Tr. 2461. The assessment was left hip
abductor strain. Tr. 2461. There were no implant issues
observed. Tr. 2461. Activity modification was recommended
along with use of heat/ice and NSAIDs. Tr. 2461. Finklea was
advised to follow up in one year for routine total hip
replacement follow up. Tr. 2461. During a September 17, 2013,
follow-up visit with his primary care physician, Finklea
complained of pain in his left hip but noted that his pain
was slightly improved and he reported being able to ambulate.
Tr. 2466. Diagnoses from the September 17 visit were hip
disease; hypertension, NOS; difficultly walking; and blurry
vision. Tr. 2470.
April 2014, Finklea was referred for a nutrition assessment
to treat his obesity. Tr. 2647. During the April 2014,
assessment, Finklea reported working part-time as a
repairman. Tr. 2649. Finklea indicated he wanted to start
some form of exercise. Tr. 2649. He indicated he had an
outdoor bike and wanted to do push-ups. Tr. 2649. He stated
that, because of his hip surgery, he could not walk as much
as he wanted. Tr. 2649. During a May 21, 2014, visit
regarding his nutrition, Finklea reported that he had
exercised once by riding his bike. Tr. 2666. He reported
being sore after riding his bike for 2-3 hours so he did not
try it again. Tr. 2666. The nutritionist recommended that
Finklea try riding his bike 30 minutes, 5 times per week, if
okay with his doctor, and slowly work up to doing more to
avoid pain. Tr. 2666.
2015, x-rays of the hip and pelvis showed normal position and
alignment and appearance of the left total hip prosthesis; a
healed fracture of the superior left acetabulum with a small
bony density in adjacent soft tissues; the heterotopic bone
along the greater trochanters was unchanged; and the right
hip and sacroiliac joints appeared normal bilaterally. Tr.
testified at and was represented at both the October 17,
2012, hearing and the April 9, 2015, hearing. Tr. 58-93
(10/17/12 hearing); Tr. 114-125 (4/9/15 hearing).
17, 2012, hearing testimony
indicated that the main reason he could not work was because
of his hip. Tr. 78. Finklea explained that he had been shot
twice in the past. Tr. 59. He was shot once in the right leg
in 2000 and he was also shot in his left leg. Tr. 59. Finklea
took the bullet out of his right leg himself but the bullet
remained lodged in his left leg. Tr. 59-60. The lodged bullet
in Finklea's left leg continued to cause him pain in that
leg. Tr. 60. Finklea also has pain in his hip due to
degenerative changes and a fracture. Tr. 60. Finklea stated
that he had to leave the shelter monitoring job because he
could barely walk and it hurt to sit. Tr. 73, 84. He also
noted, however, that the shelter monitoring job was seasonal
- just during the winter. Tr. 84. One doctor told him the
pain was caused by his sciatic nerve but another doctor
informed him that his back pain was from his hip. Tr. 73.
indicated that walking without a cane was really difficult
and hurt a lot. Tr. 83. He reported that sometimes his hip
will give out on him causing him to fall. Tr. 83. He
indicated he was able to walk around his house without his
cane but not outside. Tr. 84. Finklea explained that sitting
hurt him in his hip and lying down hurt as well. Tr. 84-85.
had been scheduled to have hip replacement surgery in
September 2012 but the surgery had to be cancelled because
his blood pressure was too high. Tr. 86. Finklea tried
injections in his hip which gave him some relief but the
amount of relief he received from the injections decreased
with each subsequent injection. Tr. 86-87. For example, he
had three injections and, with the first injection, he had
relief for about two months; with the second injection, he
had relief for about a month; and with the third injection,
he had relief for about a week and a half. Tr. 87. Finklea
stated that his pain became very severe around 2010,
indicating the pain just started getting worse and worse and
he had to go back and forth to the hospital to try to figure
out what was wrong. Tr. 90-91.
9, 2015, hearing testimony
April 9, 2015, hearing, Finklea was not using a cane or
walker. Tr. 114-115. Finklea reported that he had stopped
using cocaine about five years prior. Tr. 116. Finklea was
using a CPAP machine and he was using Albuterol and Symbicort
for his lungs. Tr. 116-117. Finklea used a rescue inhaler 3-4
times per day. Tr. 117. He was 5'10” tall and
weighed 299 pounds. Tr. 116. Finklea indicated that, since
his hip replacement surgery, his hip and back still hurt if
he walked a certain amount of time, indicating that he could
walk about three blocks, two or three times, and then he has
to use a cane and/or rest. Tr. 116. Regarding how he felt in
2010, Finklea stated that he used a cane and could not do
much of anything. Tr. 118. While in the shelter he was
staying at, he would walk to the kitchen to eat and then back
to his bunk and sit in front of the television. Tr. 118. He
was unable to get into a stand-up shower and he had a
difficult time dressing himself. Tr. 119.
April 9, 2015, hearing, the ALJ called Arthur Brovender,
M.D., an orthopaedic specialist, to testify as a medical
expert. Tr. 109-112, 316-317, 320-323. Dr. Brovender
testified that the record reflected that Finklea had
osteoarthritis of the left hip, identifying an October 27,
2011, x-ray which showed osteoarthritis of the left hip. Tr.
109. Dr. Brovender noted that Finklea was 270 pounds and used
a cane. Tr. 109. He identified a November 14, 2011, x-ray
which showed osteoarthritis of the left hip with a fracture
and indicated that Finklea had left hip replacement surgery,
citing records showing the left hip replacement surgery
occurred on November 23, 2012. Tr. 2268-2272. Initially Dr.
Brovender indicated that Finklea equaled a listing from
January 14, 2011 until June 1, 2013, but clarified that the
listing level impairment started on November 14, 2011, which
was when there was evidence of fracture in the left hip. Tr.
110-111. Finklea's counsel questioned Dr. Brovender about
the start date of the listing level impairment, pointing out
evidence of documented hip pain dating back to October 27,
2010, and use of a cane at all times to walk; and evidence of
left hip osteoarthritis with an indication that Finklea would
likely need hip replacement. Tr. 110-111 (citing Exhibit 3F,
pp. 10-11 (Tr. 1343-1344)). Dr. Brovender responded,
“Okay, That's the key word, likely. He didn't
need it at that point. He needed it at the date . . . when he
had a fracture . . . 11/14/2011.” Tr. 111.
Expert Thomas Nimberger (“VE Nimberger”)
testified at the October 17, 2012, hearing. Tr. 93-104.
Vocational Expert Gail Klier (“VE Klier”)
testified at the April 9, 2015, hearing. Tr. 112-114,
the April 9, 2015, hearing, VE Klier described Finklea's
past work as an event security worker, machine operator,
laborer, and shelter monitor. Tr. 113-114, 121-125. The VE
indicated that the event security worker position was titled
in the DOT as security guard and it was classified as a
light, semi-skilled job. Tr. 113, 121-122. The machine
operator position was titled in the DOT as machine operator
general and it was classified as a medium, semi-skilled job,
which Finklea performed at the heavy level. Tr. 113-114,
122-124. The laborer position was titled in the DOT as
general laborer and it was classified as a heavy, unskilled
job. Tr. 114, 124-125. Lastly, Finklea's shelter monitor
position was classified as a medium, semi-skilled position,
which Finklea performed at the light level. Tr. 114.
then asked the VE two hypothetical questions. Tr. 125-130. In
the first hypothetical, the ALJ asked the VE to assume an
individual who can lift /carry 20 pounds occasionally and 10
pounds frequently; stand and walk 6 out of 8 hours; sit 6 out
of 8 hours; would require a 10 second sit/stand option every
30 minutes without being off task; occasionally use a ramp or
stairs but never use a ladder, rope or scaffold; occasionally
balance, stoop, kneel, crouch, or crawl; constantly use his
hands for reaching, handling, fingering, and feeling; visual
capabilities and communication skills are constant; should
avoid high concentrations of heat, cold, humidity, smoke,
fumes, dust, and pollutants; should avoid entirely dangerous
machinery and unprotected heights; can perform simple,
routine tasks and tasks that would take more than 3 months
but up to 6 months to learn; and tasks should be low stress,
meaning no high production quotas, no piece rate work, and no
work involving arbitration, confrontation, negotiation,
supervision, or commercial driving. Tr. 126. The VE indicated
that all past work, with the exception of the shelter monitor
job, would be excluded based on the first hypothetical. Tr.
127. The VE indicated that there would be jobs in significant